Banking Case 29/09/2018

Email No: 99 - 2018

SINDH HIGH COURT

Suit No. B-43 of 2016, decided on 09-04-2018.

PETITIONERS: J.S. BANK THROUGH

AUTHORIZED OFFICERS
VS
RESPONDENTS: MESSRS LANDHI STEEL
MILL THROUGH MANAGING PARTNER
AND 4 OTHERS
PRESENT:

MUHAMMAD JUNAID GHAFFAR, JUSTICE

Khawaja Shamsul Islam for Plaintiff.

Ms. Naheed A. Shahid for Defendants Nos. 1 to 5.
Naveed-ul-Haq for Intervener (United Bank Limited).
Shaikh F.M. Javed for Intervener (Premier Extractions).
Date of hearing: 19-03-2018.

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ORDER
MUHAMMAD JUNAID GHAFFAR, Judge.---- These are various
application filed on behalf of plaintiff, defendants as well as
Applicant(s)/Intervener(s) and are being dealt with through this
common order. Application at Serial No.1 i.e. C.M.A.
No.13092/2017 has been filed under Order I, Rule 10, C.P.C. on
behalf of an Applicant for its impleadment as a Defendant.
Application at Serial No.2 i.e. C.M.A. No.3417/2017 has been filed
by the Defendants under section 10 of Financial Institution
(Recovery of Finances) Ordinance, 2001 ("F.I.O., 2001") for leave
to defend. Application at Serial No.3 i.e. C.M.A. No.3418/2017, is
under Section 5 of the Limitation Act, 1908, for condonation of
delay in filing of leave to defend. Application at Serial No.4 i.e.
C.M.A. No.17514/2016 is filed by a Bank for its impleadment as a
Defendant and finally application at Serial No.5 i.e. C.M.A.
No.15767/2016 has been filed by the Plaintiff under section 16 of
the F.I.O., 2001, for appointment of Nazir to take possession and
prepare inventory of the pledged goods.

2. This is a Suit filed by the Plaintiff Bank for recovery of

Rs.12,08,25,086.06 along with cost of funds under section 9 of
the F.I.O., 2001 with future markup, liquidated damages, cost of
Suit etc.

3. Insofar as the Application at Serial No.1 bearing C.M.A.

No.13092/2017 is concerned, it is the case of the Applicant that
the premises in question i.e. Plot No.LX-1 measuring 3.6 Acres
Landhi Industrial Area, Karachi is owned by it, whereas, the

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Muccadam of the Bank has posted its guards at the entrance

being custodian of the pledged goods and is not allowing the
applicant and its employees to enter into its property. At the very
outset, I may observe that this is a Suit under a Special law i.e.
F.I.O., 2001 between a Bank/Financial Institution and the
Customer, wherein, the applicant cannot be joined as a party. If
the applicant has any grievance, it is against the Defendants to
whom the property was rented out, if any, and for that the
applicant is at liberty to seek appropriate remedy in accordance
with law. Once the property is let out and goods have been
pledged/hypothecated by the tenant ("Customer/Defendant"),
then it is but natural that Bank/Financial Institution will be handing
over the same to its Mucaddam for proper security and monitoring
of said goods. After filing of a Suit for recovery, any effort by the
landlord/Applicant for seeking access to its let out property, in
these proceedings is an afterthought. The Mucaddam was very
much there when finance facility was availed and enjoyed. Hence,
such application cannot be entertained in Banking Suits, which is
accordingly dismissed and for this reliance may be placed on the
case of National Bank of Pakistan v. Rajby International (Private)
Limited (2016 CLD 2190).

4. Insofar as Application at Serial No.4 (C.M.A. No.17514/2016),

filed by United Bank Limited is concerned, again the same also
appears to be misconceived inasmuch as it is only apprehensive
in nature as according to UBL the Defendant No.5 had executed a
personal guarantee in some other transaction, whereas, property
bearing Plot No.D-60, Block-7, KDA Scheme-5, Clifton, Karachi
owned by Defendant No.5 is mortgaged with the Plaintiff Bank

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and the Applicant has some interest in the mortgaged property. It

may be observed that not only this application is premature in that
the applicant has not come at the stage, wherein, some judgment
and decree has been passed in its favour against Defendant
No.5. Moreover, admittedly, the property in question as referred in
the application is mortgaged with Plaintiff Bank, and therefore,
even otherwise it is the Plaintiff Bank, which is entitled for its
claim, if any, in respect of the said property, therefore, this
application is misconceived in facts and law is liable to be
dismissed. Notwithstanding this it may be observed, that even if
the Applicants case was that the said property is also mortgaged
with them, it has now been settled by the Hon'ble Supreme Court
that where two mortgages had been lawfully created in respect of
same assets of the judgment debtor, unless the decree of the first
charge was fully satisfied by its sale proceeds, the decree from
the second charge, even if created with consent of first
mortgagor, would not be executable as it would be only subject to
the satisfaction of the first decree/charge. [See Industrial
Development Bank of Pakistan v. United Bank Limited (2017 CLD
1707)]. The case of the Applicant in this matter is even worse in
that, firstly there is no decree as yet in its favour, and secondly,
neither the property in question is mortgaged with it. Hence, the
application bearing C.M.A. No.17514 of 2016 is hereby
dismissed.

5. Insofar as Applications at Serial Nos.2 and 3 are concerned,

learned Counsel for the Defendants has contended that no proper
service was affected upon the Defendant as the summons were
issued on a wrong address on which the Defendants were not

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residing. According to the learned Counsel, the Plaintiff Bank was

aware of the correct and changed address of the Defendants but
notwithstanding this fact, they chose to mention the previous and
wrong address, and therefore, no proper service was affected.
Per learned Counsel the Bailiff's report reflects that the notice on
the given address was received by some Nelofer with whom the
defendants have no relation, and therefore, no proper service was
affected within the contemplation of section 9(5) of the F.I.O.,
2001. According to the learned Counsel though publication was
made in daily "JANG" and "DAWN" but for the reasons that the
Defendants were outside the country, it cannot be presumed that
service was properly affected even through publication. Learned
Counsel has further contended that filing of this Suit only came to
the knowledge of the present Defendants when the Associate of
the Defendants' Counsel Mr. Zahid Husain was perusing Court
files of some other cases of the Defendants being Suit No.B-
45/2016 when such fact came to the knowledge that present Suit
has been filed against the same Defendants, and thereafter
immediately leave to defend was filed, hence the delay, if any,
may be condoned. Learned Counsel has further contended that
the representative of the Plaintiff Bank was always in touch
through Email with the Defendants, and therefore, despite this
knowledge, no effort was made to get the Defendants served on
their foreign address. Per learned counsel such act is intentional
and based on mala fide so as to obtain Judgment and Decree
without proper service of notice depriving the Defendants to
contest instant Suit. According to the learned Counsel the service
cannot be held good, if it is no served through any one of the
modes, which in the instant case has not been done, therefore,
the delay, if any, may be condoned and the leave to defend

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application be heard and decided on merits. In support learned

Counsel has relied upon 2002 CLD 1259 (Mahboob Ahmed v.
Citibank), 2002 CLD 1739 (Mst. Saeeda v. Habib Bank Limited
and 3 others), 2003 CLD 254 (Messrs Quetta Silk Center through
Sole Proprietor and 2 others v. Muslim Commercial Bank Limited
through Branch Manager/ General Attorney).

6. On the other hand, learned Counsel for the Plaintiff Bank has
vehemently opposed the request for condonation of delay and
has contended that the proper addresses were disclosed in the
Plaint, whereas, notice was properly served on the given address
as per Bailiff's report. According to the learned Counsel instant
Suit was being regularly fixed with Suit No.B-25/2016 of which the
Defendants' Counsel had prior knowledge, and therefore, the plea
now taken in the condonation application is an afterthought and is
not supported by the facts available on record. Learned Counsel
has contended that on 11.11.2016, inspection was ordered and
as per Nazir's Report, the inspection was carried out, which is
enough evidence for establishing the fact that a Suit was filed
against the Defendants and even if they were abroad, as alleged,
they cannot deny such fact of inspection by the Nazir of this
Court. Learned Counsel has referred to the documents on record
and has contended that in various correspondences, the same
address of the Factory is mentioned, on which summons were
issued, and therefore, the plea now taken on behalf of the
Defendants is incorrect. Learned Counsel has contended that
even otherwise, publication was carried out in two newspapers as
required in law, whereas, the requirement of section 9(5) of F.I.O.,
2001 stands fulfilled, therefore, no case is made out for

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condonation of delay, as prayed. Learned Counsel has also

referred to section 27 of the General Clauses Act as well as
section 29(2) of the Limitation Act and has contended that in view
of such provisions, even otherwise, no case of condonation of
delay is made out. In response to the arguments that the
Defendants were residing abroad, the learned Counsel has
contended that it is not for the Plaintiff Bank to chase its
customers, who are in default and they are only required to
proceed in accordance with the provision of F.I.O., 2001, which
they have done, and therefore, this argument is also
misconceived. According to the learned Counsel the plea that the
Defendants had no knowledge regarding this Suit does not fall
within the definition of sufficient cause so as to seek condonation
in terms of section 5 of the Limitation Act as they are required to
maintain due diligence. In support he has relied upon 2010 CLC
485 (Mirza Musharraf Baig through L.Rs. v. Vth Additional District
Judge (South), Karachi and 4 others), 2015 CLD 637 (Messrs
Pangrio Sugar Mills Ltd. v. Bankers Equity Ltd. and 5 others),
2014 CLD 658, (IGI Investment Bank Limited v Admore Gas
(Private) Limited), 2014 CLD 1499 (Messrs Habib Bank Ltd. v.
Mahmood Alam Sherani and another) and 2011 CLD 1721 (My
Bank Limited v. Messrs Muslim Cotton Mills (Pvt.) Ltd. through
Chief Executive and 3 others).

7. I have heard both the learned Counsel and perused the record.
Instant Suit has been filed on 10.11.2016 for recovery of the
amount, as above against the Defendants and the record reflects
that immediately on 11.11.2016, this matter was placed before the
Court on an urgent application filed on behalf of the Plaintiff and

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certain orders were passed on the application under section 16 of

F.I.O., 2001 in respect of pledged goods. It appears that since the
matter was placed before the Court immediately on the same date
it was filed in Court, no proper procedure regarding service on the
defendants was followed. Thereafter, on 03.05.2017 the following
order was passed:-

"From perusal of file, it reveals that requisite report of the Addl.

Registrar is not available on record to ascertain as to when the
process as required in terms of section 9(5) of the Financial
Institutions (Recovery of Finances) Ordinance, 2001, was
issued/service held good and as to whether any Leave-to-Defend
Application was filed within the prescribed period of 30 days or
the position remained otherwise. Let such report of Addl.
Registrar [O.S.] be submitted within 10 days.

Adjourned. Interim order passed earlier to continue till next date."

8. Perusal of the entire record does not reflect that whether the
directions as contained in the above order were complied with, as
there is no report of the Additional Registrar to this effect. Record
further reflects that though summons have been issued in this
matter, but only through Bailiff of the Court, and through
publication, and not through two other modes i.e. courier and
registered post A.D. These proceedings are not ordinary
proceedings under the Code of Civil Procedure but under a
Special law i.e. F.I.O., 2001, and therefore, they are to be

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governed within the contemplation of the relevant provisions of

F.I.O., 2001. For that it would be advantageous to refer section
9(5) of the F.I.O., 2001, which reads as under:-

9. Procedure of Banking Courts.-

(1)

(2) . ..

(3)

(4) .. .

(5) On a plaint being presented to the Banking Court, a summons

in Form No. 4 in Appendix 'B' to the Code of Civil Procedure,
1908 (Act V of 1908) or in such other form as may, from time to
time, be prescribed by rules, shall be served on the defendant
through the bailiff or process-server of the Banking Court, by
registered post acknowledgement due, by courier and by
publication in one English language and one Urdu language daily
newspaper, and service duly effected in any one of the aforesaid
modes shall be deemed to be valid service for purposes of this
Ordinance. In the case of service of the summons through the
bailiff or process-server, a copy of the plaint shall be attached

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therewith and in all other cases the defendant shall be entitled to

obtain a copy of the plaint from the office of the Banking Court
without making a written application but against due
acknowledgement. The Banking Court shall ensure that the
publication of summons takes place in newspapers with a wide
circulation within its territorial limits."

9. The aforesaid provisions provides that when a plaint is

presented to the Banking Court, summons in the prescribed
Form, as prescribed by Rules shall be served on the Defendants
through bailiff or process server of the Banking Court, by
registered post A/D, by courier and by publication in one English
language and one Urdu language daily newspapers and service
duly affected in any one of the aforesaid modes shall be deemed
to be valid service for the purposes of this Ordinance. It further
provides that in case of service of summons through Bailiff or
Process Server, a copy of the Plaint shall be attached therewith
and in all other cases, Defendants shall be entitled to obtain a
copy of the Plaint from the office of the Banking Court without
making a written application but against due acknowledgement,
whereas, the Banking Court shall ensure that the publication of
summons takes place in newspapers with a wide circulation within
its territorial limits. It is to be appreciated that the Ordinance itself
provides the mechanism for service and its effect. And this
provision is somewhat different and is not akin to the provision of
Order V, C.P.C., which deals with service of summons and its
substituted service. It is an admitted position that in this case the
summons have not been issued through registered A/D and
Courier service, nor there is any report from the Additional

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Registrar that service has been effected in line with the provisions
of section 9(5) of the F.I.O., 2001, and that no leave to defend has
been filed in time and matter is being listed for final disposal. It
appears that in this case there is serious lacking on the part of the
office and for that at least the defendants must not be penalized,
rather, the benefit if any, must go to the defendants.

10. I am also mindful of the fact though in terms of the above

provisions of Section 9(5) ibid, service through any one of the
modes is deemed to be valid service for the purposes of this
Ordinance in view of the dicta laid down in the cases reported as
Ahmed Autos v. Allied Bank of Pakistan Limited (PLD 1990 SC
497), Qureshi Salt and Spice Industries v. Muslim Commercial
Bank Limited (1999 SCMR 2353), Union Bank of Middle East
Limited v. Zubna Limited (PLD 1987 Karachi 206), Khwaja
Muhammad Bilal v. Union Bank Limited (2004 CLD 1545),
Simnwa Polypropylene (Private) Limited v. National Bank of
Pakistan (2002 SCMR 476), Allied Bank of Pakistan v. Sultan Ali
J. Lilani (2015 CLD 759), Dr. Javed Iqbal v. Askari Bank Limited
(2017 CLD 1140), Abdul Sattar v. Bank of Punjab (2017 CLD
1247); however, it is to be appreciated that this could only be
invoked and or applied once the summons have been issued in
Form-IV Appendix-B to the Code of Civil Procedure through all
such modes as are prescribed in law. Admittedly, in this matter,
summons were never issued through registered post and courier
service, therefore, it would be too harsh to penalize the Defendant
for failing to file the leave to defend application within time.
Though detailed arguments were made by the Counsel for the
Defendant in support of the application for condonation and

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simultaneously by the Counsel for the Plaintiff opposing such

application, however, in view of the above facts that the provision
of section 9(5) of the F.I.O., 2001 was not fully complied, for
reasons which are not relevant for the present purposes, I am of
the view that no further adjudication is to be made in respect of
such arguments, as apparently the summons have not been
issued properly, hence the Defendant has fully justified its case
for condonation on this ground. In the case reported as Hussan
Ara v. Bank of Punjab (2006 CLD 1502) a learned Division Bench
has been pleased to hold as under;

A perusal of all the proceedings conducted by the learned trial

Court before passing the ex parte decree against the appellants,
clearly indicates that on 17-6-2004 the learned Judge Banking
Court-III, Multan issued on a stereotyped order-sheet, without
mentioning the service of the appellant through other modes as
prescribed in section 9(5) of the said Ordinance i.e. service
through bailiff, Process Server, courier as well as registered post
acknowledgment due. We are therefore, satisfied that before
passing the impugned ex parte decree all the modes prescribed
under the abovementioned provision of law were not complied
with and ex parte decree was passed either without notice to the
appellants or without making any genuine effort for effecting
service on the appellants as prescribed in the said Ordinance,
thus the ex parte decree was passed in violation of principles of
natural justice as well as mandatory provisions of section 9(5) of
Financial Institutions (Recovery of Finances) Ordinance, 2001,
hence the said decree was a void document and liable to be set
aside even without recording evidence. Therefore, the application

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filed by the appellants for setting aside ex parte decree could not
have been dismissed on the ground that same was barred by law,
as no limitation is prescribed for a void decree or document or
order as held by the Honorable Supreme Court of Pakistan in
PLD 2002 SC 101 and PLJ 2005 SC 709.

8. At this stage we would also like to observe that instead of

passing the order under his own writing the learned Judge
Banking Court in almost all the recovery suits filed before them,
uses stereotype pro forma for summoning the defendants for the
first date and just fill the blank column, which is neither lawful nor
can be appreciated with legal sanctity. Further the said pro forma
does not contain all the modes for effecting service of the
defendants as prescribed under section 9(5) of Financial
Institutions (Recovery of Finances) Ordinance, 2001. We
therefore, disapprove this practice and direct the learned Judges
Banking Courts that they should record the order regarding
summoning of the defendants, with their own handwriting and
shall also ensure that service of the defendant is ordered through
all the modes as prescribed in section 9(5) of the above
Ordinance because unless all the modes of service as prescribed
in section 9(5) above are not adopted, no valid service can be
deemed to have been effected on the defendants.

Another learned Division Bench of the same Court in the case

reported as Nazir Hussain v. Bank of Punjab (2007 CLD 687) has
been pleased to hold as under;

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4-A. Section 9(5) of the Ordinance, 2001 envisages that when a

plaint is presented to the Banking Court, it shall issue summons,
which shall be served on the defendant through the bailiff or
process server of the Banking Court, by registered post
acknowledgement due, by courier and by publication in one
English language and one Urdu language daily newspaper, and
service duly effected in anyone of the aforesaid modes shall be
deemed to be valid service for purposes of the Ordinance. In this
case, as noted above, the Banking Court, on 27-10-2003, issued
summons to the appellants only through registered envelopes and
by proclamation in two newspapers. Placing the provision of
section 9(5) of the Ordinance in juxtaposition with order dated 27-
10-2003, it leads to the irresistible conclusion that the learned
Judge Banking Court issued summons to the appellants contrary
to the said provision of law. As noted above, section 9(5) of the
Ordinance provides that the summons shall be issued to a
defendant through four modes of service, viz. bailiff or process
server, by registered post acknowledgement due, by courier
service and by publication in two newspapers, while the learned
Judge Banking Court thought it fit in his own wisdom to issue
summons only through two modes. It may be noted that the
learned Banking Judge has no jurisdiction to deviate from the
procedure laid down in section 9(5), ibid, and adopt his own
procedure. The learned Court, thus, failed to resort to the
procedure prescribed in the special statute (Financial Institutions
(Recovery of Finances) Ordinance, 2001) and has unnecessarily
bypassed the procedure of service prescribed therein, while the
learned Judge Banking Court, who is the creature of the said
statute, is bound to adopt and obey the said procedure. In view
whereof, we feel that the procedure adopted for service of the

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appellants was defective, violative of law and had definitely

caused prejudice to the appellants. Although postal receipts,
which were on record, showed that the summons were sent by
registered post, yet no acknowledgment is on record showing that
the appellants were served through postal service. To our mind,
the learned Judge Banking Court failed to issue summons as
prescribed under the law and the appellants were not served in
accordance with law, therefore, it would have been in the fitness
of things and interest of justice if the learned Judge Banking Court
would have set aside the ex parte decree.

11. In these circumstances I am of the view that for the present

purposes, it would be a futile exercise to respond to the objection
of the learned counsel for the Plaintiff in respect of implication of
section 29(2) of the Limitation Act, 1908, and non-applicability of
section 5 ibid to these proceedings under F.I.O., 2001, in that,
even otherwise, this Court cannot remain oblivious of the
provisions of section 10(2) read with proviso thereto, and section
24 of F.I.O., 2001, by virtue of which the provisions of the
Limitation Act, 1908, shall apply to all cases instituted or filed in a
Banking Court after coming into force of this Ordinance, and even
provides that a Suit under section 9 may be entertained by a
Banking Court after the period of limitation prescribed therefor, if
the plaintiff satisfies the Banking Court that he had sufficient
cause for not filing the Suit within such period. For the peculiar
facts as above read with these enabling provisions such objection
would be dealt with in an appropriate case, if needed, in
accordance with law.

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12. In view of hereinabove peculiar facts and circumstances, of

this case, I am of the view that the Defendant has made out a
case for accepting the condonation application, therefore, C.M.A.
3418 of 2017 is allowed. The leave to defend is taken on record,
which is to be heard and decided in accordance with law,
whereas, the Plaintiff may file its replication, if so needed.

13. Accordingly, applications at Serial Nos. 1 and 4 stands

dismissed, whereas, application at Serial No.3 is allowed. To
come up after four weeks for hearing of leave to defend
application as per Roster. Office to list C.M.A. 3417 of 2017 and
C.M.A. 15767 of 2016 on the next date.

_________________

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